R v KJ - [2014] ACTSC 353

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v KJ
Citation:	[2014] ACTSC 353
Hearing Dates:	15 December 2014
DecisionDate:	19 December 2014
Before:	Burns J
Decision:	See [12] – [13]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Particular offences – crimes and offences against children – possess child pornography
Legislation Cited:	Crimes Act 1900 (ACT) s 65
Parties:	R (Crown) KJ (Offender)
Representation:	Counsel Ms Burgoyne-Scutts (Crown) Ms Warwick (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) S & T Lawyers (Offender)
File Numbers:	SCC 183 of 2014

Burns J:

The offences

KJ, you have pleaded guilty to two offences of intentionally possessing child pornography. On 27 June this year, you were in possession of an electronic tablet which contained videos and images of child exploitation material. The following day, police located further electronic devices at your residence. These devices contained videos and images of child exploitation material. The maximum penalty for the offence of possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT) is seven years’ imprisonment.

On 28 July this year, you pleaded guilty to one charge of possessing child pornography in the ACT Magistrates Court on the second mention (CC2014/6449). On 14 August this year, you pleaded guilty to the second charge of possessing child pornography in the Magistrates Court (CC2014/7358). This was on the second mention for that charge.

An Agreed Statement of Facts was tendered at the sentence hearing and I will not recite here the Statement of Facts. I simply note that with respect to the first offence, the images which form the basis of the charge were found on a computer tablet that you had left inadvertently in your workplace. A total of 351 images and videos were found on that tablet.

The second offence relates to electronic devices that were located by police at your residence when they executed a search warrant at your home. On those devices they found a total of 1910 images and videos. I note that both the tablet, which you had inadvertently left at your workplace and also the electronic devices that were located in the course of the execution of the search warrant were analysed and the images and videos which were found thereon were given classifications according to the CETS scale. I accept that most of the images and videos on the tablet and other electronic devices were at the lower end of the CETS scale, and indeed most of them were at the lowest end of the scale.

Offender characteristics

It is an aggravating circumstance, with respect to these offences, that you were on conditional liberty at the time that you committed them. On 9 February 2007 you were convicted and sentenced in the ACT Supreme Court on five counts of sexual intercourse with a young person. You were sentenced to a head sentence of 12 years’ imprisonment with a non-parole period of 6 years. On 2 October 2012, you were released on parole. You…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v KJ

Details

AGLC: R v KJ [2014] ACTSC 353
Case: [2014] ACTSC 353
Decision Date: 19 December 2014

CaseChat Overview and Summary

The case of R v KJ involved the appellant, KJ, who was charged with possessing child pornography. The case was heard in the relevant court where the sentencing for this offence was contested. The appellant had previously been convicted of possessing and distributing child pornography and had been sentenced to imprisonment. The current appeal was focused on the severity of the sentence imposed by the lower court.

The central legal issue in this case was whether the original sentence was excessive or inappropriate, given the nature and circumstances of the offence. The appellant argued that the sentence was too harsh, considering the limited extent of the distribution and the absence of any actual harm to children. The prosecution contended that the severity of the crime warranted a substantial sentence to deter such activities.

The court considered the principles of sentencing for child pornography offences, including the need for deterrence and denunciation. It examined the particular circumstances of the appellant's offending, such as the number of files possessed and the level of distribution. The court also took into account the appellant's background and the risk of reoffending. Ultimately, the court determined that the original sentence was appropriate, reflecting the seriousness of the crime and the need to protect children from such material. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

See [12] – [13]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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